Chapter - III Historical Background of the Right to...

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Chapter - III

Historical Background of the Right to Freedom in

India

The concept of freedom as a human requirement in terms of

individual’s ability to express and criticize, to peacefully assemble and

discuss matters concerning society, to move about for occupational and

tourist purposes and all forms of freedom that make human beings

happy in a civilized society is basically an age old concept in the

political tradition of India.

The concept can be traced in the famous Indian epics- the

Ramayana and the Mahabharata wherein we find that even the lowest

section of the society was permitted criticism of the King and the state

and the King was expected to work in the interest of the society, for the

welfare of the society. Though it is equally true that at that time there

was no properly written and codified system of rights of the individuals

and the basis for the acceptance of rights was morality and natural law.

Manu, who is considered the progenitor of human race, was

necessarily in favour of the concept of the Divine Rights of the Kings,

yet his King was expected to rule in a manner that provided the best

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social environment in which individuals received humane treatment by

the political rulers. Though Manu does not give the people the right to

oppose the King but the very concept of welfare state has the seeds of

recognition that essential requirements of the public should be met in a

way that the conditions of revolution does not come into existence.

This is possible when the ruling authority does not practice

discrimination and people are free in their personal matters. Kautilya,

a scholar on political and economic administration of the state has also

stood for welfare state and considered the state a contract between the

people and the king, thereby ensuring essential freedoms in the life of

the individuals within the state.

The situation changed when India came under the colonial rule.

The struggle for Freedom of the country was then supplemented with

the struggle for securing essential freedoms of the individual.

The Indian desire for civil rights had its roots in the 19th

century.

It was implicit in the formation of the Indian National congress in

1885. Actually Indians wanted the same rights and privileges as their

British masters were enjoying in India and as the Britons were

enjoying in their country. Though it was not easy but the Indians

wanted to put an end to the discrimination inherent in the colonial

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regime. A number of Acts were passed by the British rule to pacify the

Indians but none put an end to discrimination and as a consequence the

Indians decided to uproot and throw the discriminatory foreign regime

in its entirety.

Perhaps the first explicit demand for fundamental rights

appeared in the Swaraj Bill of 1895 which was inspired by Lokmanya

Tilak described by Mrs. Annie Besant as the Home Rule Bill. It

visualized a constitution guaranteeing to every citizen rights so basic as

“freedom of expression, inviolability of one’s house, right to property

and equality before the law.” Article 16 of this bill laid down a

number of rights including those of free speech, imprisonment only by

competent authority and of free state education.1 A series of Congress

resolutions adopted between 1917 and 1919 repeated the demand for

civil rights and equality of status with Englishmen. The resolutions

called for equal terms and conditions in bearing arms;2 for ‘a wider

application of the system of trial by jury’, and the right of the Indians

‘to claim that not less than half of the jurors should be their own

countrymen’.3 A further resolution stated ‘the emphatic opinion’ that

Parliament should pass a statute guaranteeing ‘the Civil Rights of His

Majesty’s Indian subjects’, which would embody provisions

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establishing equality before law, a free press, free speech etc. The

statute should moreover lay down that political power belonged to the

Indian people in the same manner as to any other people or nation in

the British Empire. 4

The demand for equality of rights and for self-government

exemplifies not only the well known desire for negative freedom, but

also that aspect of positive freedom so perceptively described by Sir

Isaiah Berlin as ‘the desire for the “positive” freedom of collective

self-direction’. ‘The “positive sense of liberty comes to light’, wrote

Berlin, ‘if we try to answer the question not, “What I am free to do or

be?”, but “By whom am I ruled?” or “Who is to say what I am, and

what I am not, to be or do?”5 The demand for this particular aspect of

positive liberty and the demand for negative freedom were to come to

their logical fulfillment with the attainment of independence and of its

corollary, adult suffrage, and with the inclusion of fundamental rights

in the Constitution.

In 1919, the Rowlatt Act gave extensive powers to the British

government and police, and allowed indefinite arrest and detention of

individuals, warrant-less searches and seizures, restrictions on public

gatherings, and intensive censorship of media and publications. The

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public opposition to this act eventually led to mass campaigns of non-

violent civil disobedience throughout the country demanding

guaranteed civil freedoms, and limitations on government power.

Indians, who were seeking independence and their own government,

were particularly influenced by the independence of Ireland and the

development of the Irish constitution. Also, the directive principles of

state policy in Irish constitution were looked upon by the people of

India as an inspiration for the independent India's government to

comprehensively tackle complex social and economic challenges

across a vast, diverse nation and population.

All the efforts of the Congressmen during this period were

summed in the Montague-Chelmsford Reforms which were very

inadequate for the nationalists and the public especially at a time when

the freedom movement was in full swing.

By the mid-twenties, congress and Indian leaders generally had

achieved a new forcefulness and a consciousness of their Indianness

and of the needs of the people, thanks largely to the experience of

World War I, to the disappointment of Montague-Chelmsford reforms,

to Woodrow Wilson’s support for self-determination, and to Gandhi’s

arrival on the scene. These influences were reflected in the tone and

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form of demands for civil rights. These no longer aimed at establishing

the rights of Indians vis-à-vis Englishmen, a goal that was to be

achieved through the Independence movement; the purpose now was to

assure liberty among Indians. The experience of colonial status would,

however, continue to be reflected in the demand for rights, for, as great

American judge has said, ‘such constitutional limitations arise from

grievances, real or fancied, which their makers have suffered, and …..

they withstand the winds of logic by the depth and toughness of their

roots in the past.’6

The next major development was the drafting of the seven

fundamental rights provisions of Mrs. Annie Besant’s Commonwealth

of India Bill of 1925. It enumerated fundamental rights which were

almost identical in scope and nature with those adopted by the Irish

Free State in its Constitution of 1921. These laid down that individual

liberty, freedom of conscience, free expression of opinion, free

assembly and equality before the law were to be ensured. There was to

be ‘no disqualification or disability on the ground only of sex’.7

According to two other provisions, all persons in the Commonwealth

of India were to have the right to free elementary education (a right

that was to become enforceable as soon as arrangements for

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educational facilities could be made), and of all persons were to have

equal right to the ‘use of roads, courts of justice, and all other places of

business or resort dedicated to the public.8 Thus were presaged several

provisions of the Fundamental Rights and one of the Directive

Principles.

Within two years of the printing of the Besant Bill came the

announcement that the Simon Commission would undertake a study of

possible constitutional reforms in India. In response the Forty-third

Annual Session of the Congress at Madras in 1927 resolved that the

Working Committee be empowered to set up a committee ‘to draft a

Swaraj Constitution for India on the basis of a declaration of rights’.9

That a declaration of rights had assumed such importance was not

surprising: India was a land of communities, of minorities, racial,

religious, linguistic, social, and caste. For India to become a state,

these minorities had to agree to be governed both at the centre and the

provinces by fellow Indians-- members, of perhaps another minority—

and not by a mediatory third power, the British. On both psychological

and political grounds, therefore, the demand for written rights—since

rights would prove tangible safeguards against oppression—proved

overwhelming. “The community, so to say, is a federal process”10

,

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Laski wrote. And Indians believed that in their ‘federation of

minorities’ a declaration of rights was necessary as it had been for

Americans when they established their first federal constitution.

The committee called for by the Madras Congress resolution

came into being in May 1928. Motilal Nehru, father of Jawaharlal, was

its chairman, and its membership represented the views of Muslims,

Hindu orthodoxy, non –Brahmins, Labour and Liberals. The

committee’s report, known as the Nehru Report, contained an

explanation of its draft constitution that speaks for itself.

The first concern of the Indians, the report declared, was ‘to

secure the Fundamental Rights that have been denied to them’. In

writing a constitution, the report continued,

‘It is obvious that our first care should be to have our

Fundamental Rights guaranteed in a manner which shall not permit

their withdrawal under any circumstances…Another reason why great

importance attaches to a Declaration of Rights is the unfortunate

existence of communal differences in the country. Certain safeguards

are necessary to create and establish a sense of security among those

who look upon each other with distrust and suspicion. We could not

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better secure the full enjoyment of religious and communal rights to all

communities than by including them among the basic principles of the

Constitution’.11

The Fundamental Rights of the Nehru Report12

, were

reminiscent of those of the American and post-war European

constitutions, and were in several cases taken word for word from the

rights listed in the Commonwealth of India Bill. Several clauses had,

however, a more particularly Indian origin—such as, ‘no breach of

contract of service or abetment thereof shall be made a criminal

offence’, which related directly to forced labour. The rights of the

Nehru Report were a close precursor of the Fundamental Rights of the

Constitution; ten of the nineteen sub-clauses re-appear, materially

unchanged, and three of the Nehru Rights are included in the Directive

Principles. The first sub-clause of the Rights (that all power and

authority of the government derived from the people) was the raison

d’etre of the Constituent Assembly as expressed in the Objectives

Resolution. The content, although not the form, of other provisions is

also to be found in the Constitution; e.g., the sub-clause on language

became Part XVII on Language.

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In the Nehru Report the desire to afford protection to minorities

was especially prominent. For example, the right to freedom of

conscience and to free profession and practice of religion was included

explicitly to prevent ‘one community domineering over another’13

.

There was also special provision made for the elementary education of

the members of minorities. Such rights as these were called Minority

Rights in the early days of the Assembly, and they appear in the

Constitution as Rights relating to Religion, Cultural and Educational

Rights, and also in Part XVII on Language.

Thus the 1928 Nehru Commission composing of representatives

of Indian political parties proposed constitutional reforms for India that

apart from calling for dominion status for India and elections under

universal suffrage, would guarantee rights deemed as fundamental,

representation for religious and ethnic minorities, and limit the powers

of the government.

In 1931 a new dimension was added to the demand for

constitutional rights. Heretofore almost exclusively devoted to the

State’s negative obligations, the demand now equally emphasized the

State’s positive obligations to provide its people with the economic and

social conditions in which their negative rights would have actual

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meaning. The Congress Session held at Karachi in March 1931,

adopted the Resolution on Fundamental Rights and Economic and

Social Change, which was both a declaration of rights and a

humanitarian socialist manifesto. The Karachi Resolution, as it came to

be called, meant that the social revolution would have a vital share in

shaping India’s future constitution, and the provisions did in fact

become the spiritual, and in some cases the direct, antecedents of the

Directive Principles.

The Karachi Resolution stated that ‘in order to end the

exploitation of the masses, political freedom must include the real

economic freedom of the starving millions’14

. The state was to

safeguard ‘the interests of industrial workers’, ensuring that ‘suitable

legislation’ should secure them a living wage, healthy conditions,

limited hours of labour, and protection from ‘the economic

consequences of old age, sickness, and unemployment’.15

Women and

children were also to be protected in various ways and accorded special

benefits. The state was to ‘own or control key industries and services,

mineral resources, railways, waterways, shipping and other means of

public transport’.16

Another item called for the reform of the system of

land tenure, revenue and rent.

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Several clauses reflected the Gandhian side of the Congress: for

example, the demand for greatly reduced military expenditure, the

ceiling of five hundred rupees per month for civil servants’ salaries, no

salt duty, prohibition, and the demand for protection against foreign

cloth. The provisions concerning the salt tax, prohibition, and

protection for domestic textiles had the ring of a tactical programme

for the Independence Movement—these subjects, had, indeed, been at

the centre of the Civil Disobedience campaign of the previous year—

and of them only prohibition reached the Constitution.

The negative rights of the Karachi Resolution were derived, in

some cases textually, from those of the Nehru Report. Four new

provisions, however, were included: the State should confer no titles;

franchise should be on the basis of adult suffrage; there should be no

capital punishment; and, citizens should have the right to freedom of

movement throughout India.

Jawaharlal Nehru has been given the credit for drafting the

Karachi Resolution, although the ‘Gandhian’ provisions do not sound

particularly like him and the list of negative rights could have been

prepared by anyone.17

The humanitarian cast of the provisions

concerning the welfare of the workers and of the people generally, the

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placing of the primary responsibility for social reform on the State, and

the emphasis on the legislative approach, however, do reflect Nehru’s

ideas and read as if he had written them. Yet there can be little doubt

that these sentiments were generally accepted, for Patel, as Congress

President, was presiding at Karachi during their adoption, and they

have been characterized as the Congress’s approach to the social

revolution from that day.

Committing themselves to socialism in 1936, the Congress

leaders took examples from the constitution of the erstwhile USSR,

which inspired the fundamental duties of citizens as a means of

collective patriotic responsibility for national interests and challenges.

In all the three sessions of the Indian Round Table Conference

held in London, the subject of Fundamental Rights was discussed at

length and memoranda was also submitted by the individuals and

groups for a provision of such chapter. But the Joint Parliamentary

Committee, in 1934 refused to accede to this demand and no mention

of Fundamental Rights was made in the Government of India Act,

1935. After this Act was partially brought into execution, the Second

World War began and the Congress started the Quit India Movement

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against the Britishers as a consequence of which the major Congress

leaders were imprisoned.

Under the educational system of British Raj, students were

exposed to ideas of democracy, human rights and European political

history. The Indian student community in England was further inspired

by the workings of parliamentary democracy and British political

parties.

Finally the Sapru Committee’s Report recommended that the

declaration of Fundamental Rights was absolutely necessary for

Indians and also for prescribing a standard of conduct for the

legislatures, government and courts. It was a major document on rights

in the pre-Assembly era. The Committee was a non-party organization

of intellectuals constituted under the Chairmanship of Sir Tej Bahadur

Sapru. It submitted its report in 1945.

The report suggested a constitutional scheme for India, and

although the portions of the report dealing with fundamental rights

contained overtones of the social revolution, it addressed itself mainly

to the problem of placating minority fears, which were again

overshadowing the political scene. With independence likely in the not

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too distant future, the minorities had to face the responsibility of living

together and of creating a state.

The fundamental rights of the new constitution, said the Sapru

Report, will be a ‘standing warning’ to all

‘That what the Constitution demands and expects is perfect

equality between one section of the community and another in the

matter of political and civic rights, equality of liberty and security in

the enjoyment of the freedom of religion, worship, and the pursuit of

the ordinary application of life’.18

Not only must the rights protect minorities, the report went on to

say, but they must prescribe ‘a standard of conduct for the legislatures,

government and the courts’.

The most striking feature about the treatment of rights by this

committee was that it also described that Fundamental Rights were to

be of two types one justiciable and other non-justiciable. The

distinction was not made, as it would be in the Constitution, in the

context of positive and negative rights, but in connection with minority

rights. Skilful lawyers, said the report, should find it possible to divide

the assurances and guarantees given to the minorities ‘in such a way

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that the breaches of some may form the subject of judicial

pronouncement, and the breaches of others may be remedied without

resort to courts of law’19

. A few months more than a year later the

Constituent Assembly began framing the Fundamental Rights and the

Directive Principles of State policy.

The Cabinet Mission had laid down in its 16th

May Plan that the

Constituent Assembly should have an Advisory Committee whose duty

would be to report the Assembly on

‘the list of Fundamental Rights, the clauses for the protection of

minorities and a scheme for the administration of the tribal and

excluded areas and to advise whether these Rights should be

incorporated in the Provincial, Group or Union Constitution’20

As per the recommendations of the Cabinet Mission, the

Working Committee of the Congress drew up a resolution establishing

the Advisory Committee at its meeting of 8 December, 1946.

Thus the task of developing a constitution for the nation was

undertaken by the Constituent Assembly of India, comprising of

elected representatives under the presidency of Rajendra Prasad. While

members of Congress composed of a large majority, Congress leaders

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appointed persons from diverse political backgrounds to

responsibilities of developing the constitution and national laws.

Notably, Bhimrao Ramji Ambedkar became the chairperson of the

drafting committee, while Jawaharlal Nehru and Sardar Vallabhbhai

Patel became chairpersons of committees and sub-committees

responsible for different subjects. A notable development during that

period having significant effect on the Indian constitution took place

on 10 December 1948 when the United Nations General Assembly

adopted the Universal Declaration of Human Rights and called upon

all member states to adopt these rights in their respective constitutions.

With the formation of the Constituent Assembly for framing the

Constitution of India this advisory Committee consisting of 54

members with Sardar Vallabh Bhai Patel as its Chairman was elected

to go about in the task. It was not until 24 January 1947 that the

Assembly voted to create the Advisory Committee. It was originally to

have been elected by the Assembly, but instead the Congress

leadership arranged that the members be chosen in off-the-floor

conferences held between Assembly leaders and the chief members of

each minority group.

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The draft lists were prepared by B.N. Rau, K.T. Shah, K.M.

Munshi and a number of distinguished experts. It submitted its interim

report to the Constituent Assembly on the 29th

of April, 1947. Except

for certain controversial provisions the drafting of the rights was

completed by mid- December, 1948. These rights in the finalized form

now constitute Part III of the Indian Constitution. The Fundamental

Rights were included in the First Draft Constitution (February 1948),

the Second Draft Constitution (17 October 1948) and final Third Draft

Constitution (26 November 1949) prepared by the Drafting Committee.

In the first session of the Constituent assembly held in December

1946 all the members had accepted that a complete Chapter on

Fundamental Rights was required. The Assembly had to face the

difficulty in choosing the categories of rights as to which were of them

were to be fundamental and how to make them sacrosanct. If they

acceded to the liberal democratic view then naturally the rights to ‘life,

liberty and property’ were to be given utmost importance. At the same

time an India that had been financially looted, culturally destroyed and

educationally backward, needed much more to attain the prevalent

global standards, This demanded the inclusion of rights such as right to

education; right to work, right to better livelihood, etc. But the

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Constitution framers, distinguished experts as they were, well

understood the fact that in the contemporary economic and social

conditions of India the grant of all rights as fundamental was likely to

create clashes in the society. The experience of both liberal and

socialist democracies was available to them. They also understood that

along with the social welfare concept of the state, the nature and scope

of fundamental rights had also widened. At that time United Nations

came up with the Universal Declaration of Human Rights on the 10th

of

December, 1948. India being a member of the United Nations was also

among the signatories. The Constitution framers now had the clarity of

the idea that the age of American Bill of Rights which believed in

‘human perfectibility and state’s malignancy’ was over21

. Thus the

difference between justiciable and non-justiciable rights was made by

B.N. Rau. The preliminary reaction of the Assembly to this proposal

was unfavourable but finally it accepted this idea.22

The sub-committee

discussed fundamental rights with different perspectives. One

perspective was that more and more rights should be incorporated in

the list of Fundamental Rights. These rights were to be enforced

through courts so that the citizens could easily avail them in practical

form.23

The second group was of the opinion that Fundamental Rights

should be limited only to certain fundamental aspects.24

In fact there

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was a third group also which was absent in the committee but was of

the opinion that under the scheme of Fundamental Rights in India there

should be no requirement of the existence of police and jails. There

should be no restriction on press and the police was not to carry stick

and gun to control the exercise of Fundamental Rights. Indians should

be free to do whatever they liked.25

The Constitution framers while considering the provisions on

Fundamental Rights had consulted the working Constitutions of a

number of countries.. Thus the development of constitutionally

guaranteed fundamental human rights in India was inspired by

historical examples such as England's Bill of Rights (1689), the United

States Bill of Rights (approved on 17 September 1787, final ratification

on 15 December 1791) and France's Declaration of the Rights of Man

(created during the revolution of 1789, and ratified on 26 August

1789).

Shri Somnath Lahiri wanted that all such rights that people of

India are desirous of should be incorporated in the Chapter on

Fundamental Rights because the wilful foreign rule had deprived the

Indians of all essential freedoms for a long time. The Britishers

imprisoned and tortured them in an arbitrary manner and put them

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behind bars without proper legal trial. Thus the perspective of

Fundamental Rights for Indians should not be based on the outlook of

police rather that of a nation clamouring and struggling for freedoms

and independence.26

Dr. Bhimrao Ambedkar considered two major purposes of

Fundamental Rights, one that all the citizens could put forward their

claim to them and secondly those responsible for making of laws must

necessarily respect and abide by the philosophy underlying them.

The advisory committee had recommended that two lists of

Fundamental Rights be prepared, one that could be executed through

law courts and the second list was to incorporate those social principles

which though non-justiciable, yet were to be considered fundamental

in the political system of the country. The rights fundamental for the

realization of the goals enshrined in the Preamble of the Constitution

were thus embraced in the Constitution under two different headings-

one called Fundamental Rights constituting Chapter III and the other

‘Directive Principles of State Policy’ constituting Chapter IV of the

Constitution. The main point of distinction being, that the former are

enforceable by the courts and the latter being non-enforceable. This

distinction was so made because the founding fathers had deep

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understanding of the difficulties that would arise in ensuring them to

the people of India straightaway.

The “Fundamental Rights” are fundamental in the sense that

they have been incorporated in the fundamental law of the land i.e. the

Constitution; are justiciable and enforceable by the courts and available

to all citizens. They are binding on public authorities in India, on the

Central government, state government and on local bodies.

Though the rights were divided under two different headings yet

none of them was to be looked down upon by the other, more

especially the ‘Directive Principles’ by the ‘Fundamental Rights’. The

founding fathers themselves stated that the Fundamental Rights were

not to be considered sacrosanct and that the Directive Principles were

fundamental in the governance of the country and it shall be the duty of

the state to apply these principles in the making of laws. But inspite of

the aforesaid statement the controversy of primacy of Fundamental

Rights over Directive Principles continued.

During the earlier or the first phase of judicial decisions the line

of thought was in favour of ‘Fundamental Rights’ and that Part III on

the whole was dealt to be as sacrosanct and Part IV was relegated to

the second priority. During the second phase both were treated at par

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and the Supreme Court agreed to look upon ‘Fundamental Rights’

from the view point of Directive Principles or Part IV.

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REFERENCES

1. Author unknown, The Constitution of India, in Shiva Rao, Select

Documents I, (New Delhi: Indian Institute of Public

Administration), 1965-66

2. Evolution’ (Calcutta: The Book Co. Ltd.) 1940, pg.19

3. Resolution of 1917, Chakrabarty and Bhattachaya, ‘Congress in

Evolution’ (Calcutta: The Book Co. Ltd.) 1940, pg.19

4. Resolution of 1917, Chakrabarty and Bhattachaya, ‘Congress in

Evolution’ (Calcutta: The Book Co. Ltd.) 1940, pg.26

5. Issiah Berlin, ‘Two Concepts of Liberty’, (Oxford: Clarendon

Press), 1961, pg. 47-48

6. Judge Learned Hand, ‘The Spirit of Liberty’, ed. By Irving

Dillard, (New York: Alfred A. Knopf) 1954, pg. XVIII

7. Commonwealth of India Bill, Clause 8(g)

8. Commonwealth of India Bill, Clause 8(d) & (e)

9. Chakrabarty, D. and Bhattacharya, C., ‘Congress in Evolution’

(Calcutta: The Book Co. Ltd.) 1940, pg.27

10. Laski, ‘A Grammar of Politics’, (London: George Allen and

Unwin) 1960, pg. 97

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11. All Parties’ Conference: Report of the Committee to Determine

Principles for the Constitution of India, pg. 89-90


Principles for the Constitution of India, pg.101-103


Principles for the Constitution of India, pg.29







17. Dev, Acharya Narendra, ‘Socialism and the National

Revolution’, (Bombay: Padma Publications), 1946, pg.203; Also

finds mention in: Brecher, Michael, ‘Nehru: A Political

Biography’, (London: Oxford University Press), 1959, pg. 175

18. Sir Tej Bahadur Sapru and Others, ‘Constitutional Proposals of

the Sapru Committee’, The Sapru Report, pg. 260

19. Sir Tej Bahadur Sapru and Others, ‘Constitutional Proposals of

the Sapru Committee’, The Sapru Report, pg. 258

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20. Gwyer, Maurice and Appadorai, A., 'Speeches and Documents

on the Indian Constitution’ (London: Oxford University Press),

1957, pg. 283

21. Pylee, M.V., ‘Constitutional Government in India’, (Bombay:

Asia Publishing House), 1966, pg. 88

22. Shiva Rao, B., ‘The Framing of the Indian Constitution: A

Study’, I edition, (New Delhi: Indian Institute of Public

Administration), 1968, pg 175

23. Opinion of K.T. Shah, K.M. Munshi, Rajkumari Amrit Kaur

and Dr. B.R. Ambedkar

24. Opinion of M.R. Masani and Sardar Harman Singh

25. Outlook of the Muslim League

26. Constituent Assembly Debates, Vol. III, pg. 870

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